United States v. Michael Faucett ( 2021 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 18, 2021*
Decided June 21, 2021
Before
DIANE S. SYKES, Chief Judge
DAVID F. HAMILTON, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 20-2773
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Indiana,
Indianapolis Division.
v. No. 1:11-cr-00193-TWP-KPF
MICHAEL D. FAUCETT, Tanya Walton Pratt,
Defendant-Appellant. Chief Judge.
ORDER
Michael Faucett, a federal inmate suffering from asthma and other health
conditions, sought compassionate release based on his risk of complications if he
contracted COVID-19. The district court acknowledged the severity of Faucett’s
conditions but denied the request based on the sentencing factors under 18 U.S.C.
§ 3553(a). Because the court did not abuse its discretion, we affirm.
*
We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 20-2773 Page 2
Faucett pleaded guilty in 2011 to producing and possessing child pornography,
18 U.S.C. §§ 2251(a), 2252(a)(4)(B), and was sentenced below the guidelines to 30 years
in prison followed by a lifetime term of supervised release. We dismissed his direct
appeal. United States v. Faucett, 485 F. App’x 834 (7th Cir. 2012). And Faucett’s later
efforts to obtain collateral relief were unsuccessful. Faucett v. United States, 872 F.3d 506(7th Cir. 2017). His projected release date is in 2037.
In July 2020, with assistance from appointed counsel, Faucett moved for
compassionate release in light of the pandemic, his age (57), and his health conditions—
type-2 diabetes, hypertension, asthma, and obesity. See 18 U.S.C. § 3582(c)(1)(A)(i). He
also pointed to his efforts to rehabilitate himself (emphasizing his clean disciplinary
record and participation in numerous educational courses) and the absence of any
danger he would present to the public (given his lifetime term of supervised release and
his worsening health conditions that would deter him from future criminal conduct). At
the time of his reply, one inmate at his prison in Fort Dix, New Jersey had tested
positive for COVID-19.
The district court denied the motion. The court acknowledged Faucett’s
heightened medical risks and commended him for his good conduct in prison but
concluded that the § 3553(a) factors weighed “dispositively” against releasing him just
9 years into his 30-year sentence. The court emphasized the “horrific” and “sordid”
nature of his offense, see § 3553(a)(1), based on his extensive child pornography
collection, which included sexually explicit photos of his five-year-old granddaughter
that he took while she was sleeping; the need to deter similar conduct,
see § 3553(a)(1)(B), given that he had served just over a quarter of his 30 year-sentence;
and the need to protect the public, see § 3553(a)(2)(C), since he did not appear to have
completed the recommended sex-offender treatment.
On appeal, Faucett first challenges the district court’s decision to hold him
responsible for not completing sex-offender treatment. He says he tried to participate in
sex-offender programming at his previous prison (FCI Petersburg in Virginia) but was
not selected to do so by the Bureau of Prisons, and such programming is unavailable at
his current prison. But whatever the circumstances, the court did not clearly err by
determining that his lack of sex-offender treatment meant that he had not addressed the
root cause of his crimes and thus still posed a threat to the public.
Next, Faucett argues that the district court did not afford sufficient weight to his
serious health conditions and his rehabilitative efforts. But this contention overlooks the
court’s broader rationale. The court did acknowledge Faucett’s increased risk of severe
No. 20-2773 Page 3
illness from COVID-19 and his good behavior in prison, but it appropriately found
those considerations outweighed by the § 3553(a) factors. See United States v. Saunders,
986 F.3d 1076, 1078 (7th Cir. 2021). The court highlighted the remaining time on his
sentence and “horrid” nature of his offense, in which he sexually abused his grandchild
who his own daughter had entrusted to his care.
Faucett also points out that, since the denial of his motion, the number of positive
cases at his prison has increased. But we are limited to reviewing only the evidence that
was before the district court at the time of decision. See United States v. Howell, 958 F.3d
589, 595 (7th Cir. 2020).
Finally, Faucett asks us again to appoint counsel for him. But appointed counsel
is not necessary to resolve the issues Faucett raises on appeal, see Pruitt v. Mote, 503 F.3d
647, 654 (7th Cir. 2007) (en banc), and so we deny that request.
AFFIRMED